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Monday, December 24, 2012

Q. Over the last few
days, there have been quite a number of postings on Facebook about Instagram,
with various people and organizations threatening to boycott the service. Will Instagram have the
right to license images for advertising purposes?

A. What you’ve
witnessed is the result of a company attempting to impose heavy-handed terms
and conditions on its users. The
uproar started when Instagram announced that it would be changing its Terms of
Use (TOU) effective January, 2013.
While perhaps not Instagram’s intention, under the new TOU, users give
Instagram the right to use a user’s name, likeness, and even photos in
advertising. The TOU also contain
a series of representations, including that the user posting photographs is not
violating any privacy rights, and that the user will pay all royalties and fees
owing to any person by virtue of a photograph being posted to Instagram. Separately, these terms can be trouble
enough, but together, they have the potential for creating a nightmare
situation.

Imagine for a moment that the new TOU go into effect, and
that some time later, you used Instagram to post a photograph of a professional
athlete prior to a sporting event.
Under those TOU, Instagram has the right to license that image for
advertising purposes, and Instgram is not obligated to share the license
fees/royalties with you. Now, it’s
bad enough that you’re missing out on sharing in the license fees for the
commercial use of one of your images, but under this scenario, the TOU go a
step further to add insult to injury.
Since you probably didn’t obtain a model release from the athlete
featured in your photo, the athlete now has a claim for the use of his or her
image in connection with advertising.
Under the TOU, however, you, the photographer, who used the Instagram
service, are responsible for paying “all royalties, fees, and any other monies
owing any person by reason of [photos] you post on or through the Instagram
service.” So at the end, Instagram gets to keep the license fees for the commercial
use of your photo, and you get to pay the athlete who didn’t sign a model
release.

In response to the TOU that were scheduled to goes into effect,
National Geographic—who in early December was ranked as the number 1 media
brand on Instagram with 588,000 Instagram followers—posted an announcement that
it was suspending new posts. The
announcement reads: “@NatGeo is
suspending new posts to Instagram.
We are very concerned with the direction of the proposed new terms of
service and if they remain as presented we may close our account.”

Q. You mentioned that
the TOU were scheduled to go into effect.
Will they be going into effect?

A. That really seems to
be the big question right now.
Instagram’s co-founder and CEO, Kevin Systrom, announced that it was not
his company’s intention of selling users’ photos. However, that did not stop numerous celebrities and
companies from announcing publicly that they would discontinue use of
Instagram. In an apparent effort to
avoid losing more users over the TOU snafu, Instagram has now scrapped the TOU
that were scheduled to go into effect on January 16, 2013, and replaced them
with a new set of new terms. While
the most recent TOU seem to omit some of the language that sparked the uproar,
it still includes some potentially problematic verbiage.

Under the most recent TOU, the license that users grant to
Instagram is “royalty-free” and “sub-licensable,” meaning that Instagram will
have the right to license the photos posted through the service without having
to share royalties or license fees with the photographers. The only exception to the license is
Instagram’s privacy policy. While
it may be possible for individual users to indicate that photos are private and
not for public viewing, that limitation won’t help entities like National
Geographic.

It also bears noting that the new TOU may not avoid the
nightmare situation I’ve already described. They are just not as in-your-face as the TOU that sparked
the uproar.

The new TOU also contain some fairly comprehensive language
that limits Instagram’s liability, requires its users to pay the cost of
defending Instagram against claims made by virtue of images posted to the
service, and a provision that significantly limits the time in which a user may
bring a claim against Instagram.

The new terms also include an arbitration provision. Arbitration is a form of alternative
dispute resolution, and it allows people to resolve their disputes as they
would in court. There are pros and
cons to arbitration, which are more thoroughly explained in my recent article, Arbitration Friend Or Foe? (http://www.digitalphotopro.com/business/arbitration-friend-or-foe.html)
which appeared in the November 2012 Digital Photo Pro magazine. One potentially positive aspect of the
TOU is that it allow users to opt out of arbitration by notifying Instagram in
writing within 30 days of the date the user became subject to the arbitration
terms (for existing users, that’s within 30 days of when the new terms go into
effect), and the notice must be sent to:
Instagram, LLC ATTN: Arbitration Opt-out 1601 Willow Rd. Menlo Park, CA
94025. Given the time-limitation,
users of the service should decide for themselves whether to reject the
arbitration and notify Instagram of that decision.

The new TOU contain many more changes than I’ve
mentioned. Anyone who uses Instagram
should really compare the old terms and new terms to get a sense of what will
be changing. The current terms can
be found here:

Samuel Lewis is a Board Certified Intellectual Property law
specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a
professional photographer who has covered sporting events for more than
twenty-five years. He can be
reached at SLewis@FeldmanGale.com or SLewis@ImageReflex.com.

Note: The information appearing in this blog entry is not, nor is
it intended to be, legal advice, and should not be construed as such. Rather, the information is provided
solely for educational purposes by providing general information about the
law. This blog is not a substitute for legal advice
from an attorney licensed to practice in the state where your business is based
or where you live.

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Miami photojournalist Al Diaz blogs about his daily work assignments as well as issues affecting visual journalists today---products, gear, technology, copyrights, events, and the latest news and info regarding the photography industry. He also posts stories by and about other photojournalists, especially current and former Miami Herald colleagues. BLOG SUBMISSIONS: If you have a blog post that you would like to share, please contact Al Diaz directly at: aldiaz305@aol.com